U.S. Senate confirms Amy Coney Barrett's nomination to Supreme Court, with Texans Cornyn and Cruz in favor
By Abby Livingston
WASHINGTON — With the support of Texas' two senators, the U.S. Senate approved the nomination of Judge Amy Coney Barrett to the U.S. Supreme Court in a 52-48 vote Monday evening.
U.S. Sens. John Cornyn and Ted Cruz, both Republicans, were early and robust backers of President Donald Trump's nomination of Barrett. She will fill the seat of the late Justice Ruth Bader Ginsburg, who died last month. The confirmation process was one of the swiftest in recent memory, and Barrett's ascension is expected to move the court in a more conservative direction.
But it will not come without political and policy consequences. Barrett will be in place to hear the state of Texas' challenge to the Affordable Care Act, which is scheduled for oral arguments after the Nov. 3 election. And her ascension to the court will likely have long-term implications for legal fights over abortion, immigration, voting rights and many other issues.
Democrats have firmly opposed Barrett's nomination, noting that Republicans in 2016 refused to hold hearings or a vote to confirm President Barack Obama's nomination for the court in an election year. The 2016 opening, Democrats note, came several months earlier in the election cycle than the death of Ginsburg.
Democrats raised hundreds of millions of dollars after Ginsburg died, and millions of campaign dollars poured into the campaigns of down-ballot candidates in Texas, including that of Democratic Senate nominee MJ Hegar, who is challenging Cornyn for the Senate seat he has held for 18 years.
Barrett is Trump's third confirmed nominee of his first term. Cornyn called her "exceptionally qualified" for a seat on the high court.
"I have faith in Judge Barrett's ability to fairly interpret the law and apply it to cases before her," Cornyn said in a statement. "Nothing more and nothing less."
Cruz said Barrett's confirmation "comes at a critical time" for America.
"Confirming Justice Barrett to the Court is a great victory for every American who cares about the Constitution, the Bill of Rights, and our fundamental liberties," Cruz said.
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The U.S. Supreme Court on Monday struck down a Louisiana law that would have curtailed access to abortions in the state, and that was nearly identical to a measure the court overturned in Texas in 2016.
The ruling is a win for advocates of abortion access, who feared the case could pave the way for states to impose greater restrictions on the procedure. And it could have had far-reaching effects in Texas where there are more than 6 million reproductive age women. More than 53,800 abortions were performed in Texas in 2017, including 1,1,74 for out-of-state residents, according to government data. The GOP-controlled Legislature routinely introduces regulations restricting abortion access, and the state's Republican attorney general recently fought to enforce a near-total ban during the coronavirus outbreak.
Monday's decision was 5 to 4, with Chief Justice John G. Roberts Jr. joining the liberal justices to strike down the Louisiana law. He had dissented in the 2016 decision that found Texas' restrictions placed an undue burden on a woman's constitutional right to an abortion.
"The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law," Roberts wrote.
The case is seen as a harbinger of how a reconstituted U.S. Supreme Court may rule on abortion issues going forward. Since the Texas case was decided in 2016, the Court's ideological center has shifted to the right with the addition of Justices Brett Kavanaugh and Neil Gorsuch — both appointed by President Donald Trump, who pledged to appoint pro-life justices who would overturn the landmark Roe v. Wade decision.
At issue in Monday's decision is a Louisiana law that requires doctors who perform abortions to have admitting privileges at a nearby hospital. It's strikingly similar to a Texas law the U.S. Supreme Court struck down in 2016 saying there was no proof the requirement better protected women's health. At the same time, “sufficient evidence" showed the admitting-privileges requirement shut down about half the abortion clinics in the state — more than quadrupling the number of reproductive age women living more than 150 miles away from one.
While the requirement was in effect in Texas, the number of abortions performed in the state declined from around 63,000 in 2013 to 54,000 the next year, according to government data.
In neighboring Louisiana, where some 10,000 women seek abortions each year, one clinic and one doctor would be left to perform the procedure if the admitting privileges requirement went into effect, the law's challengers said.
State officials say admitting-privileges are meant to protect women's health and ensure doctors are qualified. But advocates of abortion access say it is medically unnecessary because the procedure rarely results in hospitalization. When complications do arise, they often occur after the woman has left the clinic, critics of the law say. And admitting privileges are denied for reasons unrelated to the doctors' abilities; abortion providers, for example, can face difficulties qualifying for them because their patients are transferred to the hospital so infrequently, those critics said.
In the case decided Monday, lawyers challenging the Louisiana law argued it is a carbon copy of the Texas requirement, which was struck down for imposing an undue burden on women seeking abortions. The state's lawyers said the facts in Louisiana are different, and that clinics and doctors lack the legal standing to challenge the law for their patients.
Advocates of abortion access celebrated the ruling, but expressed worry about future fights over the procedure.
“We're relieved that the Louisiana law has been blocked today but we're concerned about tomorrow," said Nancy Northup, head of the Center for Reproductive Rights, a nonprofit that represented the Louisiana abortion providers. “Unfortunately, the Court's ruling today will not stop those hell-bent on banning abortion."
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The Supreme Court permanently barred the Trump administration from abruptly rescinding DACA, the program that has protected Dreamers from deportation for the last eight years.
Chief Justice John Roberts, who has recently taken up the mantle as the court's swing vote, sided with the four liberal justices and authored the majority opinion. However, the court did not make a decision on the legality of DACA but instead focused on whether the way the Trump administration chose to do it violated federal law.
"We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action," Roberts wrote. "Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner."
Texas Attorney General Ken Paxton, who is litigating a battle over the program's legality in the federal court for the Southern District of Texas, swiftly attacked the decision on Twitter.
Attorney General Ken Paxton Issues Statement on #SCOTUS Upholding DACA Program | Read a copy of the opinion here ➡️… https://t.co/lP8FiKPmPJ— Texas Attorney General (@Texas Attorney General)1592491952.0
The decision ended a nearly three-year battle over whether the Trump administration's move to abruptly end the program was "arbitrary and capricious" and therefore violating federal administrative law.
However, Justice Clarence Thomas wrote in dissent that the decision gave a "green light" for fighting future legislative and policy battles in the courts rather than "where they rightfully belong"—Congress and the executive branch.
"Today's decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision," Thomas wrote. "The court could have made clear that the solution respondents seek must come from the legislative branch."
The Obama administration created the Deferred Action for Childhood Arrivals program by executive order after giving up on Congress' ability to do so via legislation. The program allows people brought to the U.S. illegally as children to apply for temporary protection from deportation and issues them a temporary work permit. The protections last for two years and are renewable.
Around 700,000 people in the U.S. are currently protected by DACA, but it does not offer a path to citizenship. According to federal statistics, approximately 107,000 DACA recipients currently live in Texas.
The Supreme Court's decision eliminates almost any chance that a decision on the program's legality would be made before the November election.